At long last, the Obama administration is making a decisive move on immigration reform. On November 20, 2014, the president announced that, after waiting for a year and a half on a gridlocked House of Representatives, he would use executive action to overhaul the current system. Among the most notable changes, Obama announced that the government would provide temporary legal status and, potentially, work permits to undocumented residents, provided that they have lived in the country for more than five years and have American-born children. While the Republican Party and several states have rejected President Obama’s move by arguing that the president has exceeded his powers, the underlying anti-immigration sentiment is worth exploring. The implementation of such reforms into the US immigration system would have positive socio-economic effects upon the United States; moreover, modernizing immigration law into a more reasonable and accessible system will finally enable it to solve the problems that undocumented migration brings to the United States.
The Need for Reform
Both Democrats and Republicans agree that the current US immigration system is broken and needs to be rebuilt. As Obama’s address explains, not only does the current system of deportation represent an inefficient allocation of financial and human resources, but the general immigration system also precludes the integration of a large population group into the legal socioeconomic framework of the United States.
The current deportation policies are unsustainable and counterproductive. President Obama asserted that achieving total deportation is simply unfeasible. Indeed, at a current average of 369,000 deportations per year, it would take US authorities over 30 years to deport back the 11.3 million current undocumented residents of the United States. Moreover, the performance of programs such as Secure Communities as part of the Department of Homeland Security’s deportation procedures has exposed serious problems in the deportation system. In this program, arrestees were searched not only in criminal databases, but also in immigration ones, in the name of “prioritizing the removal of criminal aliens, those who pose a threat to public safety, and the most dangerous and violent offenders.” However, in 2011, 29 percent of individuals deported had committed minor offenses—such as traffic violations—and 26 percent of those deported through the program were ultimately not convicted. The current system simply does not target those who pose a real threat to US national security. Instead of deporting gang members and felons, DHS programs have validated racial profiling and pretextual arrests, which often culminate in the deportation of family members and workers from the country.
Operating within these constraints, it is obvious that the system in place is entirely regressive in terms of its economic impact. Crucially, the residents’ illegal status in the United States often does not allow them to pay taxes or legally contribute to the national economy. According to reports from the White House, two-thirds of undocumented immigrants do not pay taxes. To put those numbers into perspective, undocumented immigrants constitute 3.5 percent of the total US population. According to the Congressional Budget Office in 2007, legalizing and integrating all undocumented immigrants into the tax system would increase federal revenue by $48 billion, while only requiring $23 billion to expand public services to the necessary capacities. Moreover, the worker-to-retiree ratio in the United States would fall from 5-to-1 today to 3-to-1 by 2050. In other words, a more inclusive immigration system would increase the tax base by billions of dollars and improve the productivity of US workers. However, as long as undocumented immigrants are forced to “remain in the shadows” for fear of deportation, such economic redesign cannot take place.
President Obama’s Executive Action: Actions and Reactions
After the House of Representatives failed to discuss the 2013 Immigration Modernization Act for over 500 days, President Obama announced his intention to use executive action—a presidential non-legally binding order—to change the current immigration enforcement system, until Congress produces a bipartisan bill to make legal changes. To reform deportation, Obama announced an increase of law enforcement personnel—from guards to judges—to enforce restrictions on new immigrants attempting to enter the country illegally. For those already inside the country, efforts would focus on integrating them into the American nation. Four million illegal immigrants would be given legal status for three years, with the possibility of reapplying at the end of each term. Those qualifying for this temporary legalization would have to prove residency in the United States for at least five years, or have children born in the United States. Additionally, immigrants would be required to pass through criminal background tests and start paying taxes. This way, President Obama’s proposal would concentrate deportation efforts on recent immigrants at the border and national security threats—not long-time residents with no prior criminal history. “Talented young people” would be allowed to participate in society, and mixed-status families would not be separated.
Republican representatives have not welcomed the executive action. As of March 8, 2015, President Obama has been sued by the governments of 26 states, many of which argue that the president overstretched his constitutional authority. Moreover, conservatives have argued that President Obama’s proposal violates the rule of law: After all, they say, those 11 million undocumented immigrants broke the law and must be held accountable for it. The heated debate surrounding the immigration reform almost resulted in a partial shutdown of the Department of Homeland Security in March, when representatives could not pass the funding bill for 2015, since it included the budget for President Obama’s executive action. However, while the DHS funding has since been secured, Texan federal Judge Andrew S. Hanen issued a temporary restraining order to Obama’s executive action, which, as of date, has not allowed it to be implemented.
Reasons Behind Reforms
In view of the intense debate surrounding immigration reform, it is necessary to examine both the legality of President Obama’s actions and the effect that the reforms would have upon the rule of law.
It is vital to note that the president’s proposals—apart from being temporary until Congress passes a bipartisan bill—also simply represent a shift in focus of legal immigration procedures. Since the federal government never has enough resources to enforce every law all the time, legal systems have always prioritized some cases over others. This procedure, known as prosecutorial discretion, is not only legal, but also is systematically used in the United States and abroad. In this case, given the inefficiency of the current immigration system, granting temporary legal status to long-time undocumented residents would allow resources to concentrate on deporting real threats to US national security. Parallels can be drawn to cases in which speed limits are not enforced at every stop sign, or how possession and consumption of marijuana on college campuses is not always prosecuted to the fullest extent of the law. As Ilya Somin, Professor of Law at George Mason University argues, having a formal procedure of prosecutorial discretion is in any case more efficient than having an informal one: With President Obama’s immigration reform, the procedures of prioritization would be enforced transparently and put under public scrutiny.
Indeed, these long-established migrants have integrated into the social fabric of cities, but their illegal status prevents them from assuming their civil responsibilities in their communities.
Another common argument is that President Obama’s action represents an unfair opportunity for undocumented immigrants to ignore the illegality of their arrival in the United States and fail to be held accountable for it. To analyze this contention, it is first crucial to acknowledge the situation in which many migrants become illegal. For instance, the fact that almost 40 percent of total illegal residents in the United States actually entered legally and overstayed their visas, suggests that these individuals committed civil infractions, not criminal ones. In other words, these data indicate that the migrants qualified for entrance into the United States at some point, and thus their status as national security threats becomes questionable at the very least. A reform of the immigration system is indeed an urgent necessity; however, instead of focusing on deportations of families and workers, the United States should focus on improving and modernizing visa application procedures. If the government opens a visa category for year-round, low-skill labor, and the number of pending visa applications drops from the current 50,000-plus waiting list, migrants will be more likely to apply for legal documentation.
While it is important to acknowledge the structural conditions that may have led millions of migrants to reside illegally in the United States, the question of accountability remains. As President Obama himself acknowledged in his speech, undocumented immigrants indeed broke the law. However, the deportation of all undocumented migrants would take 30 years, assuming the population remains the same over the next decades. It is, as the president said, simply unfeasible. More importantly, however, mass deportation is not the solution to the problem. The real issue of immigrant accountability lies in the fact that a majority of undocumented migrants do not pay taxes, and yet they enjoy public services. Indeed, these long-established migrants have integrated into the social fabric of cities, but their illegal status prevents them from assuming their civil responsibilities in their communities. They should be given the chance to correct their wrongs by subjecting themselves to criminal checks and formally contributing to the country’s tax base and economic development, instead of remaining anonymous.
Finally, it should not escape us that undocumented migration represents not only a violation of rules on the migrants’ side, but also on the side of employers who take advantage of their illegal status. If the rule of law is to be upheld in the United States, it is vital to ensure that US industries themselves are playing by the rules. By granting temporary legal status to the migrant workers, the government would be able to create a labor enforcement fund that would ensure industries comply with labor and human rights. Additionally, by ensuring that migrants comply with security measures and tax payments while industries comply with labor standards, both immigrants and companies within the US economy would be contributing to economic development with transparency and legality.
Why the Immigration Law Should and Must Pass
It is clear that the immigration system is in dire need of legal reform, ideally championed by Congress itself. The need for more flexible immigration procedures has become an important facet of the political demands of Latinos. As the fastest growing voting group in the United States, neither the Democrats nor the Republicans can take their support lightly. Most importantly, however, a reform to the immigration law is vital in order to move forward on the issue of undocumented migration. Contrary to what some conservatives may think, the separation of families will not solve the problem of undocumented immigration; securing the border against recent and future immigrants, prioritizing deportation of felons over that workers, modernizing visa application processes and holding accountable those who have resided in the United States for long enough for taxes and security checks will.